YouTube is known to be one of the best places for people to create and share unique content with a range of audiences. From gaming to professional advice, the platform provides opportunities for content creators to start businesses and jumpstart their career. 

However, like any other platform, creators need to understand the legal side of things. For example, if you’re crafting a video to post on YouTube, you need to be sure that the music you’re using is copyright free, or that you’re not accidentally using someone else’s brand name. 

Let’s quickly go over some general legals to keep in mind when managing your YouTube content. 

Copyright Infringement

If you create content on any other platform, or even just create content generally, then copyright infringement should be a familiar term. 

Creators invest time and effort into their work, so you wouldn’t want someone using or stealing it without your permission (or a licence, which is something else you may want to consider). This all falls under Intellectual Property

So, it’s important that you understand your obligations around copyright in Australia. Generally speaking, you don’t need to register copyright in Australia. This means that what you create is automatically protected by copyright. 

This is great news for creators, but it also heightens the risk of accidentally using someone else’s content and thereby infringing copyright. So, it becomes your responsibility to ensure that what you create and upload is not already out there in the online world. You should double check things like:

  • The music you use
  • Images and videos in your content
  • Any brand names or logos

Can I Get A Licence To Use Someone Else’s IP?

In some cases, you may be able to use someone else’s IP under a licence. This is basically where someone gives  you permission to use their IP for your content, subject to their terms. 

This is where an IP Licence Agreement might come in handy. 

Example
Let’s say you have a YouTube channel where you record singing covers of pop songs. However, you need to use an instrumental recording of the soundtrack to include in your video. 

You contact a professional producer who has crafted the perfect instrumental for your piece, and ask if you can use this as part of your video. She agrees, as long as you explicitly state in the video and in the description that the soundtrack is her work, and you tag her YouTube channel (these would be her terms of use!)

This is using someone else’s IP under a licence. 

Put simply, if you use someone else’s IP without their permission, this is copyright infringement and will be enforced under YouTube’s Copyright Policy (we’ll talk more about this later). 

Fair Use Protection Program

If you’re creating content on YouTube, you should also be aware of their Fair Use Policy. This means you can use copyrighted material without permission if it is:

  • For research purposes
  • For review
  • For satire/parody
  • For making content accessible to disabled persons
  • For providing professional legal advice

This is known more specifically as ‘fair dealing’ under the Copyright Act 1968 (Cth)

Privacy

Privacy is an important thing to consider no matter what area of content creation you’re in. For YouTube content creators, you may want to consider things such as whether you’re filming on private property or in a public place. 

If you’re on private property, you’d need consent to do so. This kind of breach of privacy can be enforced under the Crimes Act 1900 (NSW)

Another example is if you’ve accidentally included a car’s number plate in your video. This would breach privacy laws, so you want to make sure you either:

  • Receive permission to use it in your video
  • Remove that part of the video altogether

We’ve written more about privacy here

Defamation

It’s common for content creators to film videos commenting on other people’s lives or actions, particularly public figures. But at what point does this become defamatory?

It is considered defamation if your content causes someone’s reputation to be damaged by causing the person to be:

  • Shunned or avoided; and/or
  • Subject to hatred, contempt or ridicule my members of the public

Misleading and Deceptive Conduct

Selling a product or service means you need to look closely at section 18 of the Australian Consumer Law. This section prohibits sellers from engaging in any act that is likely to mislead or deceive customers (or in this case, viewers) about a product or service. 

Sponsorships are popular on YouTube among content creators, so section 18 applies here too. This means that when you advertise something, you need to be careful not to deceive or mislead your viewers about what you’re promoting or sponsoring. 

For example, you want to make sure you’re honest and objective if you’re reviewing a product under an arranged sponsorship.  

Trade Marks

When it comes to creating content, you should always consider the best ways to protect your IP online. Most content creators will trademark their brand with IP Australia, so other people don’t use it or steal it from them. 

If your trade mark is registered, this means that it can be enforced under the Trade Marks Act 1995 (Cth). 

It can be difficult to know if or when you’ve actually infringed a registered trademark. For example, you will be infringing a trade mark if it is “substantially identical with, or deceptively similar to, a registered trademark.” 

So, if you’re creating content on YouTube, you want to make sure your logo or brand name is not identical to someone else’s logo if they’ve registered it with IP Australia.

How Do YouTube Trade Marks Work Internationally?

YouTube is used across the globe, so you might be wondering, “If I register a trade mark in Australia, does this protect my IP internationally too?

The short answer here is no. You’ll need to go through a separate process of registering an overseas trade mark with the World Intellectual Property Organisation (WIPO). This way, your YouTube content can be registered as a trade mark internationally. 

This can be quite complicated since countries will generally have different rules and requirements around trade marks, so it’s a good idea to have an International Trade Mark Consultation with an IP lawyer. 

We’ve written more about trade marks here

How Does Copyright Work On YouTube?

In Australia, any work that you create as your own is automatically protected by copyright, as long as it is in some material form. So, in the case of YouTube, any video you create as your own and upload is protected by copyright laws. 

Can I Use Music On YouTube?

Generally speaking, you can use music or sounds on YouTube as long as you have the permission of the owner of that music. So, this works the same way as using any other form of IP (such as someone else’s images or videos). 

If you don’t have permission, and the music is not copyright-free, you will be infringing copyright. 

What If Someone Is Stealing My Content?

If you think someone is using or stealing your content without first running it by you or seeking your permission, you need to contact YouTube as soon as possible. You should follow these steps:

  1. Request that the stolen content is removed or taken down (you can do this through YouTube’s Digital Millennium Copyright Act webform). 
  2. If this is unsuccessful, send a cease and desist letter

The best way to find out if someone might be using your copyrighted material is through YouTube’s Copyright Match Tool. This system finds any re-uploaded videos and allows you to request the removal of that content. 

Are You Using Someone Else’s Content?

It’s quite common for creators to use other people’s content, whether this be background music, accompanying images or snippets of another person’s video. 

This is all fine as long as you have the owner’s permission, but if you don’t, they can take legal action against you. 

There are some cases where you can Use Other People’s Content Without Permission, but these requirements are strict, so you should read through them carefully. 

How Is Copyright Enforced?

YouTube has clearly set out how they enforce copyright infringement on their platform. If a copyright claim has been made and approved, the video will be taken down and given a copyright strike. 

If the person receives 3 strikes within 3 months, their account will be terminated. YouTube has written about this process in more detail here

What YouTube Policies Should I Be Aware Of?

We’ve covered the important areas of IP protection, but what about other rules that arise when uploading content on YouTube generally?

YouTube has a Harassment and Cyberbullying Policy that basically prohibits people from engaging in name calling or malicious insults. These can be met with some serious consequences, like removing your content or terminating your account altogether. 

Need Help?

YouTube is a great way to share valuable and unique content, but it also comes with a lot of responsibility with IP protection and registration. 

Before you get started, you should familiarise yourself with their relevant policies and international laws that could affect your content. 

But of course, it’s always best to seek help from an experienced IP lawyer so you know you’re taking the right steps. 

You can reach out to us at team@sprintlaw.com.au or contact us on 1800 730 617 for an obligation-free chat.

About Sprintlaw

Sprintlaw is a new type of law firm that operates completely online and on a fixed-fee basis. We’re on a mission to make quality legal services faster, simpler and more affordable for small business owners and entrepreneurs.

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